STATUTE OF LIMITATIONS
- Personal Property2 YearsC.G.S.A. § 52-584
- Personal Injury/Death2 YearsC.G.S.A. § 52-584
- Breach of Contract/Written6 YearsC.G.S.A. § 52-576
- Breach of Contract/Oral3 YearsC.G.S.A. § 52-581
- Breach of Contract/U.C.C./Goods4 YearsC.G.S.A. § 42a-2-725
- Statue of Repose/Products/Can Be Extended By Warranty10 YearsC.G.S.A. § 52-577(a)*
- Statute of Repose/Real Property7 YearsC.G.S.A. § 52-584a**
- Breach of Warranty3 YearsC.G.S.A. § 52-577(a)
- Workers’ Compensation2 YearsC.G.S.A. § 31-293
Statute of Limitations Exceptions
*10 years from date of sale – can be extended by warranty. C.G.S.A. § 52-577(a).
**7 years from substantial completion to improvement to real property for actions brought against any architect, professional engineer or land surveyor. C.G.S.A. § 52-584a. If claim arises during 7th year after substantial completion, action can be brought within one (1) year of date of injury, but no more than eight (8) years post substantial completion.
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. If a particular defendant is uncollectable, their portion of the damages may be reapportioned among the remaining defendants – in the same portion as their share of the liability. C.G.S.A. § 52-572(h).
Med Pay/PIP Subrogation
Med Pay: Unclear. Nuzzo v. Nationwide, 1997 WL 790651 (Conn. Super. 1999) prohibits mere equitable subrogation in light of Anti-Subrogation Rule of C.G.S.A. § 52-225c. However, the Collateral Source Rule (C.G.S.A. § 52-225c) prohibits subrogation of collateral source unless “a right of subrogation exists.” Clemens v. Graham, 2003 WL 22961336 (Conn. Super. 2003) (unreported trial court decision). Argument can be made for Med Pay subrogation where the policy contains subrogation language because § 38a-334-7(c)(3) allows auto policy to contain subrogation clause for medical payment benefits and § 52-225c prevents a reduction for Med Pay benefits if a right of subrogation exists. This is especially true if the policy is issued in another state that allows for subrogation of benefits similar to Connecticut’s Med Pay benefits. However, It is possible that Connecticut will ultimately hold that unless the “right of subrogation” exists under a separate body of law (e.g., ERISA, workers’ compensation, etc.), Med Pay benefits are considered a “collateral source” under § 52-225c and no subrogation will be allowed. In one case, the court held that a subrogation provision in a health insurance policy was not sufficient to avoid the prohibition against recovery of collateral sources in § 52-225c. Pajor v. Town of Wallingford, 704 A.2d 247 (Conn. App. 1997).
Related Case Law: Alfred Chiulli & Sons v. Hanover Ins. Co., 2007 WL 4239788 (Conn. Super. 2007).
PIP: Coverage not applicable since 1993.
Automobile and Property: Pro-Rata. Collision deductible included in subrogation demand. Conn. Gen. Stat. Ann. § 38a-351a. Effective January 1, 2010. Except as prohibited by § 38a-336b of the general statutes, if an insurer chooses to exercise its right of subrogation pursuant to the terms of an automobile liability insurance policy, such insurer shall include in such subrogation demand the amount of any collision deductible paid by such insured, unless such insured requests such insurer not to include such amount. The insurer shall share subrogation recoveries with the insured on a proportionate basis.”
While there is no specific statute or case law governing the duty of a subrogated insurer to reimburse the insured’s deductible, the Connecticut Supreme Court has held that an insured need not be reimbursed its deductible in order to be “made whole.” Fireman’s Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc., 2013 WL 3818112 (Conn. 2013).
Deductible must be included in any subrogation demand.
Made Whole Doctrine
Until recently, the Made Whole Doctrine had not been applied outside the context of a bankruptcy proceeding in Connecticut. In re DeLucia, 261 B.R. 561 (Banc. Ct. 2001). However, the Connecticut Supreme Court has given us a clue as to how it will treat this issue in the future. The Court has held that while a right of true equitable subrogation may be provided for in a contract, the exercise of that right will have its basis in general principles in equity, rather than in contract, which will be treated as merely a declaration of the principles of law already existing. Wasko v. Manella, 849 A.2d 777 (Conn. 2004). However, the discussion in Wasko v. Manella regarding the Made Whole Doctrine was considered dicta and wasn’t binding. In 2013, however, the Connecticut Supreme Court broadly adopted the equitable Made Whole Doctrine for the first time. Fireman’s Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc., 2013 WL 3818112 (Conn. 2013).
Nonetheless, Connecticut case law intimates that the Made Whole Doctrine can be overridden by contract terms in a Plan or policy and the courts will allow these contract terms to override the application of this equitable Doctrine. Automobile Ins. Co. of Hartford v. Conlon, 216 A.2d 828, 829 (Conn. 1966). In an action for reimbursement of monies paid out on policy of collision insurance, the Court held that the insurer had the burden of proving that the judgment recovered by the insured included compensation for property damage and that as a result the insurer was entitled to recover, either on unjust enrichment theory or on theory that insured had violated his contract by refusing to cooperate with the insurer in effecting recovery. Id.
Recently, the Connecticut Court of Appeals, interpreting Connecticut law, has held that boilerplate subrogation language in a policy does not displace the Make Whole Doctrine in Connecticut. Fireman’s Fund Ins. Co. v. TD Banknorth Ins. Agency Inc., 2011 WL 1601993 (Conn. App. 2011). That Court stated that an insurer’s right of equitable subrogation is subject to the Made Whole Doctrine, which provides that the insurer may enforce its subrogation rights only after the insured has been fully compensated for all of its loss. Id. When insurance coverage compensates a policyholder for less than the full loss, the insurer must first use any recovery from a third-party to compensate the policyholder for the remainder of its loss before keeping anything for itself. Id. On a certified question from the Court of Appeals, the Connecticut Supreme Court, in a footnote, clarified that the Made Whole Doctrine is merely the default rule and that parties are free to provide differently in their insurance contract, provided they do so expressly. Fireman’s Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc., 2013 WL 3818112 (Conn. 2013).
Economic Loss Doctrine
Minority Rule (via statute for consumer claims only). Connecticut’s Product Liability Law displaces the common law of products liability. Conn. Gen. Stat. §§ 52-572m(b), 52-572n(a). Under the statutory scheme, the victims of defective products may recover for “harm,” Conn. Gen. Stat. § 52-572n(a), which is defined to include “damage to property, including the product itself, and personal injuries including wrongful death.” Conn. Gen. Stat. § 52-572m(d). The definition of harm itself states that “[a]s between commercial parties, ‘harm’ does not include commercial loss.” As between commercial parties, commercial loss caused by a product is not harm and may not be recovered by a commercial claimant in a product liability claim. An action for commercial loss caused by a product may be brought only under, and shall be governed by, Title 42a, the Uniform Commercial Code (U.C.C.). Therefore, economic loss recovery is allowed in noncommercial product liability claims. Chiang v. Pyro Chemical, Inc., 1997 WL 330622 (Conn. Super. 1997). The ELD is a bar to tort actions where the relationship between the parties is contractual and the damages are economic in nature.
Tenants are co-insureds under a landlord’s fire insurance policy and may not be sued for their negligence as they are an insured under the policy. St. Paul Fire & Marine Ins. Co. v. Durr, 2001 WL 984782 (Conn. Super. 2001) (not reported in A.2d). This holding was first adopted in Sutton v. Jondahl, 532 P.2d 478 (Okla. Ct. App. 1975) (“Sutton Rule”). An exception to this rule exists where there is a lease that addresses the subrogation rights of the landlord. In the absence of a specific agreement to the contrary, there is no subrogation. The reasoning behind this is that the tenant is deemed to be a co-insured of the landlord because: (1) both parties have an insurable interest in the premises, the landlord as owner, and the tenant as possessor, of the fee; and (2) the tenant’s rent presumably includes some calculation of the landlord’s fire insurance premium.
In DiLullo v. Joseph, 792 A.2d 819 (Conn. 2002), the Connecticut Supreme Court established a “default rule of law” where there is no agreement between landlord and tenant as to who bears the risk of loss. The “default” is that, unless the lease refers to a right of subrogation on the part of the landlord or its insurer, no right of subrogation exists. The DiLullo Court specifically noted that “tenants and landlords are always free to allocate their risks and coverages by specific agreements, in their leases and otherwise.” Id.
In Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28 (2006), the Connecticut Supreme Court held that the lease in question did “not remotely inform the defendant that they would be liable to their landlord’s insurer” for fire damages to the landlord’s building, nor did it inform the defendant of the need to obtain fire insurance “to cover the value of the entire multi-unit apartment building.” One of the reasons DiLullo established a “default” rule was to avoid the economic waste of forcing each individual tenant in a multi-unit apartment to insure the whole building. The lease in Middlesex was ambiguous about whether the defendant’s liability was limited to loss of the security deposit, so no subrogation was allowed. However, in Amica Mut. Ins. Co. v. Andresky, 2012 WL 527678 (Conn. Super. Ct. 2012), the lease provided:
(1) that tenant (defendants) would obtain public liability and fire insurance for the benefit of the landlord and the tenant in the amount of $500,000 for liability and $500,000 for fire, and (2) the tenant would pay all costs if repair is required because of misuse or neglect by tenant, his family or anyone else on the premises.
The Superior Court in Andresky said that this language was “far more clear” and informed the defendant/tenant that they would be liable to their landlord’s insurer. The following year, another Superior Court decision stated that a lease must mention subrogation and/or inform the defendant that he may be liable to the landlord’s insurer for any casualty fire damages to the landlord’s building. State Farm Fire & Cas. Ins. Co. v. Rodriguez, 2013 WL 5879514 (Conn. Super. 2013). Like the lease agreement involved in Vaszil, the lease in Rodriguez made no mention of subrogation and did not remotely inform the defendant of liability to the landlord’s insurer for any casualty fire damages to the landlord’s building.
In Amica Mut. Ins. Co. v. Muldowney, 180 A.3d 950 (Conn. 2018), the Connecticut Supreme Court took a fresh look at the issue of a landlord’s property insurer subrogating against tenants. The landlord’s carrier paid for water damage caused by frozen pipes of a tenant who was on vacation. The issue was what sort of “specific agreement” (see DiLullo) was required to expressly state that a landlord’s carrier has a right of subrogation and overcome the DiLullo presumption against subrogation (more precisely, overcomes that “the tenant’s rent presumably includes some calculation of the landlord’s fire insurance premium). The Supreme Court loosened the prohibitions against subrogating against a tenant by stating that the lease doesn’t have to expressly state that a landlord’s insurer has a right of subrogation against the tenant in order for subrogation to be allowed. It is sufficient for the lease to notify the tenant explicitly that he is responsible for any damage to the leased property and to allocate to the tenant the responsibility to provide liability and property damage insurance. Under the lease in that case, the tenants were required to take certain actions designed to guard against frozen pipes and subsequent water damage. The lease also stated that if they breached the lease, the tenant had to pay for repairs if their actions made the premises unfit or unlivable and to hold the landlord harmless for any loss arising out of their use or occupancy of the premises. As a result, subrogation was allowed. The Supreme Court held that (1) the landlord and tenant had a “specific agreement” sufficient to overcome the default presumption that the landlord’s insurer had no right of subrogation against the tenants; and (2) the landlord’s carrier was allowed to pursue subrogation against the tenants and this was fair and consistent with the doctrine of equitable subrogation.
All fire insurance policies issued in Connecticut must conform to. C.G.S.A. § 38a-308. In regard to the insurer’s subrogation rights, the standard form includes a subrogation provision stating: “This Company may require from the insured an assignment of all right of recovery against any party for loss to the extent that payment therefore is made by this Company.” The subrogation clause set forth in C.G.S.A. § 38a-307 fails to provide an insurer with a direct, and inviolate, right of subrogation. It merely provides that an insurer “may require” an insured to assign any rights they have to the insurer. Thus, under this clear language, the right of recovery belongs to the insured, and the insurer can only obtain that right when the insured grants it. Wasko v. Manella, 849 A.2d 777 (Conn. 2004). The policy must contain specific subrogation language.
Adverse Inference: Although Connecticut has recognized that an adverse inference may be drawn when relevant evidence is intentionally destroyed, the courts have also recognized as a general rule that the inference is a permissive one. Leonard v. Commissioner of Revenue Services, 264 Conn. 286, 306, 823 A.2d 1184, 1197 (Conn. 2003). An adverse inference may be drawn against a party who has destroyed evidence only if the trier of fact is satisfied that the party who seeks the adverse inference has proven three things: (1) the spoliation must have been intentional; (2) the destroyed evidence must be relevant to the issue or matter for which the party seeks the inference; and (3) the party who seeks the inference must have acted with due diligence with respect to the spoliated evidence. Beers v. Bayliner Marine Corp., 236 Conn. 769, 777-78, 675 A.2d 829 (Conn. 1996).
Willful Misconduct. Liability imposed on parents when child’s actions are willful or malicious; negligence of child is sufficient to impose liability on parents when child harms person or property while operating motor vehicle without permission of vehicle’s owner. C.G.S.A. § 52-572.
The limits of liability are $5,000.
Child must be under 18-years-old.
Pure Several Liabiity. Several liability, generally, but there is joint and several liability for actions not based in negligence. C.G.S.A. 925 § 52-572(h); Allard v. Liberty Oil Equip. Co., Inc., 756 A.2d 237 (Conn. 2000).
A right of contribution exists in favor of a defendant required to pay more than his proportionate share of a judgment. A contribution plaintiff who pays or agrees to pay a settlement or judgment can commence a separate action for contribution by other tortfeasors. C.G.S.A. § 52-572h (1986).
The statute of limitations is one (1) year after judgment final. C.G.S.A. § 52-572(o). If no judgment, contribution plaintiff must discharge common liability within the applicable limitations period and initiate contribution action within one (1) year of payment. C.G.S.A. § 52-572(e).
Suspension of Drivers' Licenses
Administrative Suspension: Each automobile insurance carrier reports its policy inceptions and cancellations to the DMV. Drivers who are identified as uninsured will receive a warning notice from the DMV, followed by a suspension of vehicle registration, and after 30 days, driver’s license suspension. C.G.S.A. § 14-12g. Suspensions remain until the driver complies with automobile insurance requirements, completes compliance form and pays all compliance and reinstatement fees. C.G.S.A. § 14-12g3.
Contact Information: State of Connecticut, Department of Motor Vehicles, Driver Services Division, 60 State Street, Wethersfield, CT 06161-2525, (860) 263-5700, http://www.ct.gov/dmv/site/default.asp.
Prohibits Intermediate Indemnity. Applies to Construction Contracts or Agreements. Conn. Gen. Stat. § 52-572k.
Applicable to contracts entered into after October 1, 1977.
Diminution of Value
First Party: The court has discretion to select the repair measure which stands in as a substitution for diminution in value caused by damage to property. There are currently no cases available dealing with insurance recovery as differentiated from tort recovery. Willow Springs Condominium Ass’n, Inc. v. Seventh BRT Dev. Corp., 245 Conn. 1 (Conn. 1998).
Third Party: Plaintiff is entitled to recover the reasonable repair costs and any residual diminution in value. Littlejohn v. Elionsky, 36 A.2d 52 (Conn. 1944); Stults v. Palmer, 141 Conn. 709 (1954); Damico v. Dalton, 1 Conn. App. 186 (1984); Papenheim v. Lovell, 530 N.W.2d 52 668, 672 (Iowa 1995); Alexander v. Bailey, 55 Conn. L. Rptr. 653 (2013); Chenevert v. Turek, 2013 WL 6671512 (Conn. 2013); Corridino v. Kovaks, et al., 2013 WL 8118969 (Conn. 2013); Sheldon v. Soucy, 2014 WL 1814279 (Conn. 2014); Bartnick v. Stehr, 2014 WL 5094332 (Conn. 2014).
Mixed Consent: Connecticut is “mixed” because criminally, under Connecticut General Statutes § 53a-187, it’s a one-party consent state. It is against the law to record a telephone communication or a communication made by a person other than a sender or receiver, without the consent of either the sender or receiver. For civil cases, however, it is not a one-party consent state. Pursuant to C.G.S.A. § 52-570d, you are not allowed to record an oral private telephone conversation without consent from all parties to the conversation. So, it’s impermissible in a civil context, meaning there’s civil, not criminal, liability. You can sue the recorder for damages (that is, if there are any damages, such as when someone who puts your phone call on the internet or sends it to your employer). You can also get attorneys’ fees from the eavesdropper. C.G.S.A. §§ 53a-187, -89; C.G.S.A § 52-570d.
Connecticut statute allows a court to order criminal restitution if there was damage to person or property as a result of a criminal offense, and if the victim specifically requests it. C.G.S.A. § 53a-28 (West).
Although restitution has been awarded to an insurer as a “victim,” the statute does not specifically qualify an insurer as such. In State v. Jones, the court stated that the criminal defendant must abide by a probation order which included an amount in restitution to an insurer. State v. Jones, 55 Conn. App. 243, 739 A.2d 697 (1999).
Health and Disability Insurance
Statute of Limitations: 2 Years. C.G.S.A. § 52-584.
Subrogation of Medical Benefits are not allowed and the Subrogation of Disability Benefits are allowed. C.G.S.A. § 52-225a; Collateral source reduction not applicable to disability benefits. Friedman v. Stackhouse, 48 Conn. L. Rptr. 699 (Conn. Super. 2009); Schroeder v. Triangulum Associates, 789 A.2d 459 (Conn. 2002). Made-Whole does not apply. Common Fund applies. Town of New Hartford v. Conn. Resources Recovery Auth., 970 A.2d 592 (2009) (recognizing Doctrine in context of class action litigation).
Funeral Procession Traffic Laws
There are no state laws governing funeral processions.
Statute of Limitations: 2 Years. C.G.S.A. § 31-293.
Can Carrier Sue Third Party Directly: Employer can bring suit pursuant to § 31-293. Carrier can bring suit and automatically loses 1/3 of its lien if it waits for employee to file suit.
Intervene: Must intervene or give notice of lien within 30 days after notice of filing suit.
Recovery from UM/UIM Benefits: No.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: No.
Recovery Allocation/Equitable Limitations: (1) Fees, Expenses; (2) 1/3 to Employee (if employee filed – no credit); (3) Carrier Reimbursed; and (4) Balance to Plaintiff. If suit brought by carrier, may be subject to equitable defenses, including the Made Whole Doctrine.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: The lien is automatically reduced by 1/3 if plaintiff files suit, unless employer is a state or city. Most likely, suit must be filed to get attorneys’ fees. If suit is brought by carrier, may be subject to equitable defenses, including the Common Fund Doctrine.
Future Credit: Yes.
Auto No-Fault: No.
Dog Bite Laws
Dog owner/keeper will be liable for damages, unless victim committed a trespass, tort, or was abusing the dog. If victim is under the age of 7-years-old, there is a presumption against trespass/tort. Conn. Gen. Stat. Ann. § 22-357.
Employee Leasing Laws
The Connecticut statute provides that the employer who originates a contract where an employee is loaned to another employer is ultimately responsible to the worker for all benefits. C.G.S.A. § 31-292. Section 31-284 provides:
“… all rights and claims between an employer who complies with the requirements of Subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights in claims given by this chapter …” C.G.S.A. § 31-284.
Condominium Waiver of Subrogation Laws
Associations must maintain property, commercial general liability, fidelity, and sometimes flood insurance, but the insurer must waive its rights to subrogation against a unit owner and any member of his/her household. Connecticut Common Interest Ownership Act, C.G.S.A. § 47-255(d)(2).
Automobile Total Loss Thresholds
Total Loss Formula (See here for definition).
Insurer must use NADA average and one additional approved source and constructive total loss is when cost to repair or salvage damage equals or exceeds the total value. Once it is declared a “total loss” by the insurer, it is a “salvage vehicle.” C.G.S.A. § 38a-353.
Sudden Medical Emergencies While Driving
Sudden Emergency Doctrine. Negligence is not to be imputed to the driver of an automobile merely because he suddenly blacks out, faints, or suffers a sudden attack, losing consciousness or control of the car, when he is without premonition or warning of his condition. Bushnell v. Bushnell, 131 A. 432 (Conn. 1925); Caron v. Guiliano, 211 A.2d 705 (Conn. Super. Ct. 1965).
The Connecticut Supreme Court has not considered the Sudden Emergency Doctrine since 1925. Criticism of the doctrine has arisen with regard to the confusion of the doctrine with respect to the standard of care and its effect on the application of comparative negligence.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Claims Against The State.
No State officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused within the scope of his or her employment or duties. C.G.S.A. § 4-165 (1959).
Notice Deadlines: Claims against the State shall be presented within one year after it accrues. C.G.S.A. § 4-148.
General Assembly may, through special act, authorize a person to present a claim after one year if:
(1) just and equitable; and
(2) express finding of compelling equitable circumstances that would serve a public purpose.
Claims for injuries resulting from defective highways, sidewalks, roads, or bridges must be brought within two (2) years and notice within ninety (90) days. Inaccuracy in notice will preclude recovery. C.G.S.A. §§ 13a-149, 13a-144.
Claims/Actions Allowed: Connecticut’s doctrine of sovereign immunity does not allow the State to be sued without its consent. The Claims Commissioner was created to process claims and grant consent for claims against the State. C.G.S.A. §§ 4-142 and 4-160. Commissioner can approve the immediate payment of “just claims” not exceeding $7,500. “Just claims” are those that in equity and justice the State should pay, as long as it caused the damage or injury. C.G.S.A. §§ 4-141, 158.
Suits can be brought against state for defective or poorly maintained highways, bridges, and sidewalks. Not limited to roads within the state highway system, but no liability for sidewalks maintained by a municipality. Government must have actual or constructive notice. C.G.S.A. § 13a-144.
Comments/Exceptions: There are certain claims which may be brought directly against the State:
(1) Any person injured through the negligence of any State official or employee when operating a motor vehicle owned and insured by the State shall have a claim against the State. C.G.S.A. § 52-556 (not subrogation claims);
(2) Claims for the periodic payment of disability, pension, retirement or other employment benefits;
(3) Claims upon which suit otherwise is authorized by law (injured by defective bridge/road. C.G.S.A. § 13a-144) (not subrogation claims); and
(4) Claims for which an administrative hearing procedure otherwise is established by law.
NOTE: Subrogation claims under C.G.S.A. § 52-556 and § 13a-144 may not be brought by subrogated carrier because they are not a “person”. Nationwide Gen. Ins. Co. v. Colon, 2016 WL 3391622 (Conn. Super. 2016).
Damage Caps: None.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: Insurer must pay an amount equal to (A) the settlement amount on such vehicle plus, (B) whenever the insurer takes title, an amount determined by multiplying the settlement amount by the current tax rate percentage. C.G.S.A. § 38a-816.
Third-Party Claims: No authority requiring payments of sales tax to third-party total loss claims. Insurers have no duty of good faith to third parties since their relationship is adversarial and not fiduciary in character. Asmus Elc., Inc. v. G.M.K. Contractors, LLC, WL 758126 (2005); Sherrick v. Belanger, 43 Conn. L. Rptr. 878 (2007).
Damage to Property Without Market Value
Service Value: “… if there is no market value at the time and place, resort must be had to the actual value at the time and place of delivery.” Pape v. Ferguson, 62 N.E. 712 (Ind. Ct. App. 1902).
Intrinsic Value: “The owner…may recover its usable value to himself…though no sentimental value can be taken into account.” Holmes v. Freeman, 185 A.2d 88 (Conn. App. Ct. 1962).
Sentimental Value: “The owner…may recover its usable value to himself…though no sentimental value can be taken into account.” Holmes v. Freeman, 185 A.2d 88 (Conn. App. Ct. 1962).
Municipal/County/Local Government Immunity and Tort Liability
Liability of Political Subdivisions: C.G.S.A. § 52-557n. (codified qualified immunity established by common law). Connecticut in minority of states that still make distinction between governmental acts (qualified immunity from discretionary acts requiring judgment or discretion) and proprietary functions (no immunity for ministerial acts performed in a prescribed manner without judgment or discretion).
Exceptions to qualified immunity:
(1) failure to act leads to imminent harm;
(2) statute provides for cause of action; and
(3) intentional act.
Notice Deadlines: Written notice must be filed with the clerk of such municipality within six (6) months after such cause of action has accrued.
Statute of Limitations: An action against municipality must be commenced within two (2) years after the cause of action. C.G.S.A. § 7-101a(d). Claims for injuries resulting from defective highways, sidewalks, roads, or bridges must be brought within two (2) years and notice within ninety (90) days. C.G.S.A. §§ 13a-149, 13a-144. Section 13a-149 has savings clause which forgives inaccuracy in notice if no intent to mislead.
Claims/Actions Allowed: Municipalities generally are liable for damages to persons or property caused by:
(1) Negligent acts by employees within the scope of their employment or official duties;
(2) Negligence in operation of enterprise for “special corporate benefit or pecuniary profit” (e.g., water supply, sewer, municipal parking garage, or golf course); and
(3) Creation or participation in the creation of a nuisance.
C.G.S.A. § 52-557n(a)(1).
However, this liability is significantly limited by several exceptions. Suits can be brought against state or municipality for defective or poorly maintained roads and bridges. C.G.S.A. § 13a-149.
For additional liability statutes, see C.G.S.A. §§ 13a-144 to 13a-153e.
Comments/Exceptions: No liability for acts which require the exercise of judgment or discretion as an official function of authority granted by law. C.G.S.A. § 52-557n(a)(2). Other statutory exceptions covering particular activities or conditions are set forth in C.G.S.A. § 52-557n(b).
No immunity when performing following governmental functions:
(1) maintenance of a park system;
(2) construction of storm water sewers (a governmental function because it is a duty imposed by the state on municipalities to maintain highways within its limits);
(3) use of municipal property as a public park; and
(4) traditional governmental functions such as the operation of jails, public libraries, and city garbage services.
Damage Caps: None.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: Hand-held phone use is prohibited, but hands-free phone use is allowed. C.G.S.A. § 14-296aa(b)(2).
Drivers under the age of 18 may not use a cell phone in any capacity, hand-held or hands-free. C.G.S.A. § 14-296aa(d).
No person may operate a vehicle, and use their cell phone to send, read, or type a text message. C.G.S.A. § 14-296aa(b)(1).
Other Prohibitions: No Applicable Laws
Workers’ Compensation Claims by Undocumented Employees
Statute: The term “employee” includes every person in service under any contract of hire or other employment avenue. It is silent on “aliens” as employees. Conn. Gen. Stat. § 31-275(9)(A)(i).
Case Law: Dowling v. Slotnik, 712 A.2d 396, 403 (Conn. App. Ct. 1998).
Comments/Explanation/Other: “Examination of legislative history revealed that the legislature did not intend to exclude illegal aliens from coverage under the state’s workers’ compensation laws.”
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: State v. Porter, 698 A.2d 739 (Conn. 1997).
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Contributory negligence of driver is not imputed to owner of vehicle in action for recovery of damages to vehicle against third-party defendant resulting from negligence of third party. Levy v. Senofonte, 204 A.2d 420, 426 (Conn. Cir. Ct. 1964).
However, when Family Car Doctrine is in effect, action for property damage resulting from collision between owner’s wife and third party will be defeated by imputed contributory negligence of wife. Ustjanauskas v. Guiliano, 225 A.2d 202 (Conn. 1966).
Vicarious Liability/Family Purpose Doctrine: Driver is presumed to be the agent and servant of the owner of vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption. C.G.S.A. § 52-183.
Connecticut adheres to the Family Car Doctrine. Operation by family member raises presumption that vehicle was family vehicle and was being operated as such within the scope of general authority from the owner, which the defendant must rebut. C.G.S.A. § 52-182. Vicarious liability imputed to owner on basis of agency and is applicable equally to all parties whether they are plaintiffs or defendants. Ustjanauskas v. Guiliano, 26 Conn. Supp. 387, 225 A.2d 202 (Super. Ct. 1966); Hunt v. Richter, 163 Conn. 84, 88, 302 A.2d 117, 119 (1972).
Sponsor Liability for Minor’s Driving: No Sponsorship Liability Statute.
Product Liability Law
Statute of Limitations/Repose: 3 years for personal injury and wrongful death. C.G.S.A. § 52-577a. Discovery Rule applies. Statute of Repose is 10 years. C.G.S.A. § 52-577a(a).
Liability Standards: Negligence, Strict Liability, Warranty, Other. C.G.S.A. 52-572m, et seq.
Fault Allocations: Pure Comparative. C.G.S.A. § 52-572(h).
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: No.
Heeding Presumption?: No. DeJesus v. Craftsman Machine Co., 548 A.2d 736 (Conn. App. 1988).
Innocent Seller Statute: No. C.G.S.A. § 52-572m(b).
Joint and Several Liability: Yes. C.G.S.A. § 52-572o.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; State of the Art; Government Contractor Defense; Presumption; Sophisticated User.
Restatement 2nd or 3rd?: Both.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: N/A
Common Law Rule: A vehicle owner may be liable for injuries caused by a thief to a third party if the theft could be anticipated by the vehicle owner. Consiglio v. Ahern, 251 A.2d 92 (Cir. Ct. A.D. 1968), Alberone v. King, 213 A.2d 534 (Conn. 1965).
An individual who contributes to the payments on the premium of a property insurance policy, and who would reasonably not expect to be the target of subrogation, is exempt from subrogation. Allstate Ins. Co. v. Palumbo, 994 A.2d 174 (Conn. 2010). A home insurer can seek equitable subrogation against a houseguest who negligently burns down a home. Wasko v. Manella, 849 A.2d 777 (Conn. 2004). In Palumbo, a woman’s fiancé lived with her in the home that she owned. The fiancé negligently installed a water heater, which resulted in a fire that damaged the home. The court ruled that equitable subrogation against the fiancé was impermissible because the fiancé contributed to payments on the homeowner’s insurance, had lived in the residence for an extended period, and likely would have believed that subrogation against him was impossible. In Wasko, a houseguest negligently burned down a vacation home. The insurer brought a subrogation action against the guest, who argued that he was protected by the ASR because he was an implied co-insured on the homeowners’ policy. The court ruled that although statutory subrogation was barred, equitable subrogation against the houseguest was still permissible.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: C.G.S.A. § 38a-355.
Summary: Insurer must provide a written estimate of repairs that clearly identity OEM or non-OEM parts. Connecticut law also requires the attachment of a disclosure statement to the repair estimate, as specified by the statute.